Summary
The Supreme Court upheld the quashing of orders moving a waitlisted candidate, who had been recommended for one college but never joined, to the Principal's post at Meerut College. It held that his self-chosen non-joining is not a vacancy arising 'otherwise' under Section 13(4) of the U.P. Higher Education Services Commission Act, 1980. Once the 2023 Act repealed that Act, the old select list lapsed and could not be used for fresh postings.
Issues
- Whether Section 13(4) of the U.P. Higher Education Services Commission Act, 1980 permits a fresh recommendation or change of posting for a waitlisted candidate already recommended to another college who did not join, consistently with Kamlesh Kumar Sharma v. Yogesh Kumar Gupta.
- Whether, after the U.P. Education Service Selection Commission Act, 2023 repealed the 1980 Act, the orders of 13.12.2023, 12.01.2024 and 15.01.2024 posting the appellant to Meerut College could be sustained.
- Whether the Officiating Principal had locus standi to challenge the appellant's appointment.
Provisions considered
- Section 13(3) and (4), Uttar Pradesh Higher Education Services Commission Act, 1980Section 13(4) lets the Director intimate a name from a valid list for a vacancy arising from 'death, resignation or otherwise'. Following Kamlesh Kumar Sharma, the Court read 'otherwise' ejusdem generis as covering only unforeseen vacancies. A recommended candidate's own failure to join, followed by a request for posting elsewhere, does not qualify, because allowing it would defeat Section 13(3). (¶¶ 13, 14, 15, 19, 20, 21)
- Sections 12 and 14, Uttar Pradesh Higher Education Services Commission Act, 1980The Court read these with Section 13 as a scheme under which management appoints only on the Director's intimation, must issue the appointment letter within a month, and may seek a fresh name if the candidate does not join. (¶¶ 13, 14, 18)
- Sections 10 and 11, Uttar Pradesh Education Service Selection Commission Act, 2023After 21.08.2023, appointments had to follow the vacancy, requisition and panel procedure in these provisions. The 2023 Act gives the Director no power like that in Section 13(4) of the 1980 Act. (¶¶ 16, 17, 23)
- Section 31, Uttar Pradesh Education Service Selection Commission Act, 2023Under the saving in Section 31(2), only the act actually done under the 1980 Act was saved: the recommendation of 03.08.2022 to the Ballia college, which the Director had declined to alter on 17.08.2023. The saving did not support the later fresh postings. (¶¶ 17, 22)
- Section 6, Uttar Pradesh General Clauses Act, 1904Read with Section 31(3), the effect of repeal is that nothing not in force at the time of repeal is revived. The old select list could therefore not be revived after the repeal to support the orders in the appellant's favour. (¶ 24)
Held
- Under the 1980 Act, management appoints only on the Director's intimation from the Commission's list. Section 13(4) lets the Director intimate a name for a vacancy arising from death, resignation or otherwise while the list is valid. (¶¶ 14, 15)
- The word 'otherwise' in Section 13(4) is read ejusdem generis with death and resignation and covers only unforeseen vacancies. A waitlisted candidate who was recommended to one college, did not pursue the appointment, and waited for a vacancy of his choice elsewhere does not fall within it. Allowing that would supersede the earlier recommendation and frustrate Section 13(3). (¶¶ 18, 19, 20, 21)
- The only act saved by Section 31(2) of the 2023 Act was the recommendation of 03.08.2022. On commencement of the 2023 Act the select list under the 1980 Act lapsed, and appointments had to follow Sections 10 and 11 of the 2023 Act. The orders of 13.12.2023, 12.01.2024 and 15.01.2024 based on the old list were without authority. (¶¶ 22, 23)
- Under Section 6 of the U.P. General Clauses Act, 1904, the repeal of the 1980 Act did not revive the previous list or permit fresh action under it. (¶ 24)
- State officers must give the Court genuine assistance based on the facts and the applicable law, and must not support a party contrary to law. The Chief Secretary may examine the conduct of the officers who took an unlawful stand, though no adverse direction was issued because they were not parties. (¶ 26)
- Because the authorities' action was plainly illegal, the Court did not decide whether the Officiating Principal had locus standi and left that question open. (¶ 27)
Result
Appeal dismissed; the High Court's quashing of the orders dated 13.12.2023, 12.01.2024 and 15.01.2024 upheld with additional reasons; parties to bear their own costs; the State left free to examine its officers' conduct.